dissenting: I disagree with the conclusion of the majority that the facts in the present case bring it within the principle of John E. Cavanagh, 36 T.C. 300 (1961). That case involved reimbursement to the taxpayer of “his excess cost for food and lodging of his family while his household effects were in transit” which we referred to as “extraordinary expenses.” The reimbursement to the taxpayer in the instant case was for his ordinary living expenses at Lander, his new post of duty. Ordinary living expenses of a taxpayer at a permanent place of employment, even though his family is living elsewhere, are personal expenses. In accordance with holdings in Leo C. Cockrell, 38 T.C. 470 (1962), affd. 321 F. 2d 504 (C.A. 8, 1963), and Doyle v. Commissioner, 354 F. 2d 480 (C.A. 9, 1966), affirming a Memorandum Opinion of this Court, I would hold that the reimbursement received by petitioner is includable in his taxable income. In my view, the instant case is indistinguishable from Light v. Commissioner, 310 F. 2d 716 (C.A. 5, 1962), affirming a Memorandum Opinion of this Court. The majority opinion disposes of the Light case by stating that it is inapplicable in that it dealt with the availability of a deduction to the employee. The facts in Light v. Commissioner, supra, are that the taxpayer was transferred by his old employer from New Orleans to Newark, where he occupied a hotel room prior to moving his family to Newark. By prearrangement that taxpayer was reimbursed by his employer “for the cost incurred for meals and rooms in Newark prior to being joined by his family, and for the hotel and meals for himself and his family for the few days between their arrival in Newark and their occupancy of a dwelling at that place.” Although the Light case dealt with the deductibility of the cost incurred by the taxpayer for meals and lodging in Newark, that issue would not have arisen except for the inclusion by the taxpayer in his income of the amount of the reimbursement received from his employer. Technically the case dealt with a claimed deduction, but inherent in the decision is the conclusion that the reimbursement constituted income to the taxpayer.
However, even if the facts in the present case should be considered to bring this case within our holding in John E. Cavanagh, supra, I would nevertheless disagree with the conclusion reached by the majority. In my view we should accept and follow the circuit court’s opinion in England v. United States, 345 F. 2d 414 (C.A. 7, 1965), certiorari denied 382 U.S. 986 (1965), holding Cavanagh to be incorrectly decided.
In H. Willis Nichols, Jr., 13 T.C. 916 (1949), we held moving expenses for an old employee to be personal expenses. It follows that reimbursement of such personal expenses constitutes income. As pointed out in Commissioner v. Mendel, 351 F. 2d 580, 582 (C.A. 4, 1965), reversing 41 T.C. 32 (1963), “Ordinarily, reimbursement for moving expense to an existing employee would constitute gross income under the comprehensive definition in § 61(a) of the Eevenue Code of 1954” but “Rev. Rul. 54-429, supra, [195A-2. C.B. 53] sought to alleviate the rigors of the application of the statutory definition of gross income to reimbursement for moving expenses to an existing employee.” Whether the Commissioner should, by ruling, exclude from income that which by statute is includable therein, is not before us here, nor has it been before this Court or the other courts in other cases decided since Rev. Rul. 54-429,1954-2 C.B. 53, became effective. The Commissioner has permitted the exclusion from income of reimbursement of moving costs in accordance with his ruling. Whether we approve of the ruling or not (see Judge Opper’s concurring opinion in Willis B. Ferebee, 39 T.C. 801, 804 (1963), involving reimbursement of moving expenses to a new employee), the time has come to cease attempting to follow it to its logical conclusion in deciding cases involving claimed deductions or reimbursements to which it does not grant exclusion from income. In accordance with Light v. Commissioner, supra, and England v. United States, supra, I would hold that the reimbursement here in issue constitutes income to petitioner and that the amounts of the expenses for which the reimbursement was received are not deductible. Cf. United States v. Woodall, 255 F. 2d 370 (C.A. 10, 1958).
Ttetjens, BRuce, PieRCe, and Atkins, JJ., agree with this dissent.